1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHREE SHIVA, LLC, No. 2:21–cv–211–JAM–KJN 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE

PLAINTIFF’S REQUEST FOR ENTRY OF

13 v. DEFAULT AGAINST DEFENDANTS

CITY OF REDDING AND JAMES RIGHT

14 CITY OF REDDING, et al., (ECF No. 10.) 15 Defendants. 16 17 On June 14, 2021, plaintiff Shree Shiva, LLC filed a motion for entry of default against 18 defendants City of Redding and James Right, which was ultimately set for a July 29, 2021 19 hearing.1 (ECF Nos. 10, 11.) Plaintiff asserts default should be entered against these two 20 defendants because they failed to respond to the initial complaint by a May 5, 2021 stipulated 21 deadline. (ECF No. 10.) However, as plaintiff recognizes, these two defendants responded to the 22 complaint by filing a motion to dismiss. (ECF No. 7.) Plaintiff argues default should still be 23 entered, however, as their motion to dismiss was untimely filed (on May 19) and defendants 24 failed to request permission to file the motion after the deadline. 25 Plaintiff is correct that under Federal Rule of Civil Procedure 55(a), default may be 26 entered against a party who fails to plead or otherwise defend in an action where an opposing 27 1 This motion is referred to the undersigned by Local Rule 302(c)(19). See 28 U.S.C. 28 § 636(b)(1)(B); Federal Rule of Civil Procedure 72. 1 | party seeks a judgment for affirmative relief. This entry of default would “cut[] off defendants’ 2 || rights to appear in this action, file counterclaims, or to present a defense.” Great Am. Ins. Co. v. 3 || M.J. Menefee Const., Inc., 2006 WL 2522408, at *2 (E.D. Cal. Aug. 29, 2006). However, given 4 | that defendants’ motion to dismiss 1s currently pending before the district judge, and is set for an 5 || August 2021 hearing, it appears the defendants have some intent to defend against plaintiff's 6 || claims. See Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956) (finding no abuse of 7 || discretion in denying plaintiff's motion to enter a default judgment after defendant failed to plead 8 | to plaintiff's complaint by the deadline); see also, e.g., Felts v. Cleveland Hous. Auth., 821 F. 9 || Supp. 2d 968, 979 (E.D. Tenn. 2011) (finding default judgment unwarranted, although answer 10 || was filed two weeks after court-ordered deadline, where there was no showing that defendant was 11 || prejudiced by late filing, and the answer set forth ample factual and legal allegations). Thus, for 12 || the sake of judicial economy, the court denies plaintiff's motion for entry of default at this time. 13 || See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (noting that a decision to grant or 14 || deny default lies within the district court’s sound discretion, and that default judgments are 15 || ordinarily disfavored); see also Stephenson v. Lappin, 2007 WL 1577632, at *1 (E.D. Cal. May 16 | 31, 2007) (entry of default characterized as “non-dispositive”). Plaintiff may press its argument 17 || about the untimeliness of defendants’ motion to dismiss before the district judge. Should 18 || defendants be left without a response to plaintiff's complaint after resolution of the motion to 19 || dismiss, plaintiff may refile its motion for entry of default (addressed either to the undersigned or 20 || to the Clerk of Court). 21 ORDER 22 Accordingly, it is HEREBY ORDERED plaintiff's motion for entry of default (ECF No. 23 | 10)is DENIED WITHOUT PREJUDICE, and the hearing on this motion, currently scheduled for 24 | July 29, 2021, is VACATED. 25 | Dated: June 25, 2021 %6 Foci) Aharon 27 KENDALL J. NE SD, shre.211 UNITED STATES MAGISTRATE JUDGE 28